Glen Wright

Marine Governance, Ocean Energy, and Environmental Law

You wouldn’t know it from land, but 45% of the surface of the globe lies outside the control of any government. The high seas (and seabed) are designated as “Areas Beyond National Jurisdiction” by the UN, with little regulation and few environmental safeguards.

Indeed, we used to believe that these areas were not worth exploiting or protecting, but scientific and technological advancements are opening up a world of possibilities.

What lies beneath

Keep to your lane. www.shutterstock.com

In recent decades, cargo shipping has grown rapidly and industrial fishing has moved into ever deeper and more distant waters. At the same time, a range of novel activities are under development. Contracts have been signed with the International Seabed Authority to mine valuable minerals from the seabed, and scientists and entrepreneurs are dreaming up new ways to use the ocean to mitigate climate change through “geoengineering”. One such idea is to “fertilise” the ocean with iron, stimulating algal blooms that can lock away carbon.

We have also found a wealth of potential uses for the unusual genes contained in unique deep sea organisms. “Marine genetic resources” taken from these organisms are now turning up in everything from anti-cancer drugs to high-end skin creams. The search to find such genes, known as “bioprospecting”, has begun in earnest, with the US, Germany, and Japan, leading the charge.

This is a problem. Though we are not always aware of the vast ocean expanse beyond the horizon, the high seas provide us with a range of invaluable resources, not least seafood, clean air, and the global sea routes that deliver goods from across the globe to our doorstep.

The high seas contain unique habitats – such as huge underwater mountains and vents that spew boiling water into the icy depths – and we are constantly discovering new flora and fauna making their homes in these extreme environments.

Just one of the many hydrothermal vents that line the ocean floor. NOAA

At the same time, high seas ecosystems are highly interconnected with the seas and coasts that do happen to fall within national jurisdiction, with species constantly criss-crossing the arbitrary lines we have drawn on the map.

If we fail to to properly manage our global ocean, we have a lot to lose.

Tangled net

Unfortunately the global regulatory framework for these areas is a hodgepodge of different legal instruments and organisations that mostly do not work well together. Even when they do, huge gaps remain.

There is currently no way to create internationally recognised marine protected areas (MPAs) on the high seas, while the exploitation of marine genetic resources has been a thorny issue because their status under international law is unclear. There are no global rules requiring the assessment of the environmental impacts of a range of activities, including bioprospecting.

No-man’s-land. B1mbo, CC BY-SA

Despite a consensus decision to press on with negotiations, states haven’t always seen eye to eye. In particular, there has been intense ideological debate about the status of marine genetic resources: developing countries are concerned that only the wealthiest countries can afford to exploit this common resource, while many developed countries don’t want their potentially profitable activities to be subject to regulation.

States agree on some issues, such as the need to provide developing countries with the know-how and technology to conduct marine scientific research. International guidelines are already in place, but states have been slow to act. Some efforts have been made, such as the provision of training for early career scientists in developing countries and shared scientific cruises, but such efforts are limited, ad hoc, and uncoordinated. It is unclear how a new agreement could kickstart a new era of assistance and cooperation.

Even issues that initially appear easy to address may ultimately prove tough to resolve in the context of charged negotiations. For example, while almost all states have their own environmental impact assessment laws at home, agreeing a similar process for the high seas is likely to be far more complicated.

Stormy weather

The current consensus is already an uneasy one, and this meeting is only the first of four that will take place in 2016 and 2017. It won’t be until 2018 that the UN General Assembly decides on the convening of an intergovernmental conference to adopt a new treaty.

This is undoubtedly an historic and optimistic moment, and an important first step to ensuring that our global ocean gets the protection it so badly needs. Nonetheless it seems likely that there will be many more storms ahead before any heads of state are signing on the dotted line.

A new Issue Brief on ocean energy was published today by the Institute for Sustainable Development and International Relations (IDDRI). The paper brought together authors from 9 different institutions from across the world to set out the key legal issues and challenges for the development of ocean energy.

Ocean energy is a novel renewable energy resource being developed as part of the push towards a ‘Blue Economy’. The literature on ocean energy has focused on technical, environmental, and, increasingly, social and political aspects. Legal and regulatory factors have received less attention, despite their importance in supporting this new technology and ensuring its sustainable development.

The paper sets out some key legal challenges for the development of ocean energy technologies, structured around the following core themes of marine governance: (i) international law; (ii) environmental impacts; (iii) rights and ownership; (iv) consenting processes; and (v) management of marine space and resources.

Highlights

Ocean energy is bringing unique challenges to marine governance frameworks, with legal and regulatory issues frequently cited as a major non-technical barrier to development.

By requiring exclusive occupation of ocean space, ocean energy is effectively privatising a common good and creating potential for conflict with other rights-holders and existing marine users.

Uncertainties regarding the environmental interactions of ocean energy devices must be better accommodated in regulatory processes, based on adaptive and risk-based management strategies.

Marine Spatial Planning has rapidly developed as a tool for managing ocean spaces, though it is not yet clear how ocean energy, and other new marine industries, can be integrated into these processes.

At the January 2015 meeting of the BBNJ Working Group, States took the historic step of agreeing to open negotiations for a new legally binding international agreement on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction.

During the previous meeting (June 2014), a strong coalition for the opening negotiations developed, with longstanding proponents such as the EU and G77 being joined by the newly vocal States of the African Union, Caribbean Community (CARICOM), and the Pacific. However, some key states, including the US, Canada and Russia, remained reluctant to open negotiations for a new UNCLOS IA, concerned that the need for such an agreement had not been established, and that a new global instrument could interfere with existing regional and sectoral arrangements.

At this meeting, the third and final meeting on the question of opening negotiations, these divisions continued, but States were finally able to reach a compromise following intensive discussions that lasted until the early hours of the morning. States clashed over the question of whether the discussions should lead to legally binding instrument and whether or not the Preparatory Commission would make substantive recommendations on the elements of an international legally binding instrument. There had been some concern that the recommendations from the Working Group would essentially lead to little more than a continuation of the same informal UN discussions. As part of reaching consensus, no deadline was set for finalising the treaty.

The Working Group recommends the establishment of a preparatory committee, prior to an intergovernmental conference, to make substantive recommendations on the elements of a draft text. This preparatory committee shall start its work in 2016 and will report to the UNGA on progress by the end of 2017. The Working Group recommends that the UNGA decide on the convening and on the starting date of an intergovernmental conference before the end of its seventy-second session. The recommendations reaffirm the package deal agreed on in 2011, namely: marine genetic resources; area-based management tools, including marine protected areas; environmental impact assessments; and capacity building and technology transfer.

The recommendations will now be approved by the UNGA by September 2015, with work to begin in the Preparatory Committee next year.